Debating India

Ensuring a more accountable judiciary

Wednesday 25 May 2005, by ANDHYARUJINA*T.R.

A high-level judicial council needs to be set up in India to investigate complaints of misconduct against judges of the superior courts.

THE ONLY legal method for disciplining judges of the Supreme Court and High Courts is their removal from office by vote of Parliament for "proved misbehaviour." When the Constitution enacted that in 1950, the Supreme Court had eight judges and the nine High Courts had about 50 judges. Standards of public life in those times were high and there had been only two cases of misbehaviour by High Court judges. The framers of the Constitution apparently believed that the occasion to impeach a judge of a superior court by Parliament would be rare, as had been the case in England from where the impeachment procedure was borrowed.

Today, it would be idle to pretend that the general falling standards of public life in India have not affected judges of the superior courts too. Allegations of misconduct by judges are reported from time to time and tend to shake the confidence in the superior courts as a whole. Two High Court judges have faced criminal prosecutions for corruption. With the judge strength of the superior courts up to 743, and planned to go higher, it is a statistical probability that there will be more complaints of misconduct of judges. Judges of subordinate courts can be disciplined and removed by the High Courts but strangely there is no such effective method for judges of the superior courts themselves.

The unsuccessful attempt at removal of a judge of the Supreme Court, Justice V. Ramaswamy, in 1993 by impeachment showed that the process was flawed, dilatory, cumbrous, and political. It also revealed a stark anomaly: there was no legal provision for suspending a judge while he or she was under investigation. Clearly, there is a need to change the method of removal of judges of the superior courts provided by the Constitution 50 years ago and put in place a quick and effective method that at the same time does not impair public confidence in the judiciary. Such a change requires not only a constitutional amendment but a consensus between judges and the political branches of government. The controversies over the proposed National Judicial Commission show there is no such consensus to make the change.

No legal procedure

This situation however need not hold up the enactment of an ordinary law by Parliament in consultation with the judiciary for handling judicial misconduct that calls for disciplinary action short of removal of a judge. Such a law would supplement the process of removal by impeachment. Today there is no legal method or procedure for investigating complaints against judges of superior courts for what is generally described as their "deviant behaviour."

Despite random statements by two Chief Justices of India of corrupt judges in the judiciary, it would be wrong and unfair to tarnish the judiciary as corrupt. The vast body of judges in India have the confidence of the people. It is the deviant behaviour of some judges and departures from the rectitude expected of them in and outside court that is the major problem. For this, there is no forum for complaint. The absence of a law for disciplining judges of the superior courts has resulted in difficult problems of dealing with complaints against judges. Presently, on a credible complaint against a judge, the Chief Justice of India as head of the judiciary appoints a committee of judges to investigate and report to him. There is no legal authority for this and a defiant judge may not recognise such a committee investigating his or her conduct.

There is also no legal means to suspend a judge under investigation or take away his or her judicial work pending an enquiry of the relevant conduct. The only means to discipline a judge under a cloud is for the Chief Justice of India to transfer him or her to another High Court, a move that is understandably resented by lawyers of the High Court to which the judge is transferred. In two cases, the bar in Bombay took the extraordinary step of calling for the resignation of judges suspected of misconduct. In the second case, the Supreme Court sharply reprimanded the bar for taking matters into its own hands. Another unsatisfactory situation is that the press that reports the alleged misconduct of a judge also runs the risk of being hauled up for contempt.

These difficult situations can be avoided if a law is made by Parliament on the pattern of an Act made by the Congress in the United States for misconduct of federal judges. It is called the Judicial Councils Reform and Judicial Conduct and Disability Act, 1980. The essence of such a law is that it is a self-regulating mechanism by judges for dealing with misconduct that falls short of impeachable conduct. Under this Act, any person alleging that a judge has engaged in conduct "prejudicial to the effective and expeditious administration of justice" may complain to a Judicial Council composed of judges.

If the Chief Judge of the Judicial Council finds there is no substance in the complaint, he or she dismisses it but if it requires investigation he or she constitutes a Special Committee to investigate the complaint. The Special Committee then makes a report upon which the Judicial Council may take several actions against the errant judge, such as (i) requesting the judge to retire voluntarily, (ii) ordering that on a temporary basis for a certain time no further cases be assigned to the judge, (iii) censuring or reprimanding the judge privately or publicly, and (iv) other action as it considers appropriate under the circumstances.

If the Judicial Council considers that a case is made out for removal of the judge, it will certify that to an apex Judicial Conference of the United States; if it concurs with the Judicial Council, it transmits the record to the House of Representatives for the judge’s removal by impeachment. The judge whose conduct is under investigation is afforded an opportunity to appear and defend himself or herself in the proceedings.

All papers and records of investigations are confidential. This enables a complainant and the judge freely to state their cases, which in the absence of a statutory protection of confidentiality they may not freely make.

In 1993 a National Commission set up by the U.S. Congress on Judicial Discipline and Removal concluded that the 1980 Act was a credible supplement to the impeachment process of removal of judges for resolving complaints of misconduct of judges. The Commission found that in many cases the judges whose conduct was under investigation were persuaded by their peers to retire with the help of a threat of action from the Judicial Councils.

The Commission found that the most important benefit of the 1980 Act was the impetus it gave to the informal resolution of the problem of judicial misconduct by the judiciary itself. In October 2002, the U.S. Supreme Court upheld the punishment of censure and denial of work imposed on Judge John H. McBryde by the Judicial Council, dispelling earlier doubts about the legality of disciplinary action by the Judicial Councils over judges.

A similar high-level Judicial Council needs to be set up by an Act in India to investigate complaints of misconduct. If the complaint is found to be frivolous or motivated by dissatisfied litigants or interest groups, it should be summarily dismissed with an appropriate penalty for making a false complaint.

On the other hand, if a complaint has substance, the errant judge shall be appropriately dealt with, short of removal. Admonishment by his or her peers may in many cases be sufficient for a judge who has "gone wrong." Until the complaint is investigated, the judge can be legally divested of judicial duties and not paid any salary. In gross cases, peer pressure may compel an errant judge to resign; failing that, the Judicial Council may report to Parliament for his or her removal. A judicial discipline act is the need of the hour.

(The writer is a Senior Advocate and a former Solicitor-General of India.)

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